Opinion
Nos. 14-07-00721-CR, 14-07-00722-CR
Memorandum Opinion filed September 13, 2007. DO NOT PUBLISH. Tex. R. App. P. 47.2(b).
On Appeal from the 262nd District Court Harris County, Texas Trial Court Cause Nos. 957551 957550.
Panel consists of Chief Justice HEDGES and Justices ANDERSON and SEYMORE.
MEMORANDUM OPINION
Appellant entered a plea of no contest to two offenses of aggravated sexual assault of a child. Appellant and the State agreed that appellant's punishment would not exceed confinement in prison for more than forty years in each case. In accordance with the terms of these agreements with the State, the trial court sentenced appellant in absentia on November 9, 2006, to confinement in each case for forty years in the Institutional Division of the Texas Department of Criminal Justice. On August 28, 2007, the court sentenced appellant in person to confinement in each case for forty years in the Institutional Division of the Texas Department of Criminal Justice, with the sentences to be served consecutively. Appellant filed a written notice of appeal in each case. We dismiss the appeals. Although the trial court entered a certification of the defendant's right to appeal in each case certifying that appellant waived his right of appeal, we have no jurisdiction over the appeals. See TEX. R. APP. P. 25.2(a)(2). An agreement that places a cap on punishment is a plea bargain for purposes of Texas Rule of Appellate Procedure 25.2(a)(2). Waters v. State, 124 S.W.3d 825, 826-27 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (holding reviewing court lacked jurisdiction where defendant pled guilty with a sentencing cap of ten years, even though trial judge mistakenly certified defendant had right of appeal); Threadgill v. State, 120 S.W.3d 871, 872 (Tex.App.-Houston [1st Dist.] 2003, no. pet.) (holding statement in record indicating that there was no agreed recommendation did not convert proceeding into an open plea where plea was entered pursuant to agreed sentencing cap); see also Shankle v. State, 119 S.W.3d 808, 813 (Tex.Crim.App. 2003) (stating sentence-bargaining may be for recommendations to the court on sentences, including a recommended "cap" on sentencing). Because appellant's pleas were made pursuant to plea bargain agreements, he may appeal only matters raised by a written pre-trial motion or with the trial court's permission. See TEX. R. APP. P. 25.2(a)(2). The records do not contain any pre-trial rulings on written motions or any indication that the trial court granted appellant permission to appeal. Accordingly, we dismiss the appeals.